Theories of Rights: Is There a Third Way?

Abstract

In some recent articles, Leif Wenar and Gopal Sreenivasan have separately undertaken sophisticated and piquant attempts to resolve a long-standing debate over the essential features of rights. This chapter focuses on Wenar and his Several-Functions Theory. It focuses on his discussions of liberties and powers. The chapter argues that the Several-Functions Theory is a version—a detailed but simplistic version—of the Interest Theory. It examines that, instead of amounting to a hybrid of the Interest Theory and the Will Theory, Sreenivasan's account of rights generates some unacceptable conclusions that would be rejected by Will Theorists and Interest Theorists alike. Like Wesley Newcomb Hohfeld, Wenar takes legal powers to be abilities to effect changes in other people's legal positions and one's own legal positions. He distinguishes between single powers and paired powers. Sreenivasan expresses two perceptive worries about Kramer's theory. In the first of his objections, he raises a concern which we ourselves have fleetingly addressed in footnote 19 above.

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